Fundamental Rights and the European Public Prosecutor’s Office: an uncomfortable silence

The EU’s proposal for the
establishment of a European Public Prosecutor’s Office (EPPO) has created quite
a stir in the Member States. The EPPO would be competent to investigate and
prosecute fraud with EU money (e.g. the misuse of EU funds), although there is
already talk about extending its competence to terrorism and other serious
crime. So far, political negotiations over the draft regulation have focused on
the question why the EU is in in need of this new supranational body in the
first place, and on the extent of the EU’s influence on national affairs,
particularly in such a sensitive area as criminal justice.

Supposing that in the near future
the European Public Prosecutor’s Office will indeed be established, more
attention to the substance of the current proposal needs to be paid without
delay, particularly to the protection of fundamental rights. The current
proposal raises serious concerns on this matter, as it is unclear who will
supervise the actions of the EPPO and how this may be done effectively.

Procedural Rights in EU criminal law

In the EU context, the question of who is responsible for the guaranteeing
of procedural rights in transnational criminal law enforcement has already
frequently been addressed by legislation. After all, Member States of the EU do
cooperate intensively on a daily basis: think of the European arrest warrant
mechanism, which enables the rapid surrender of suspects from one Member State
to another. All such cooperation mechanisms contain provisions on legal
protection.

The proposal to establish an EPPO takes criminal justice integration
significantly further than any other instrument created thus far. The EPPO will
be authorized to take intrusive coercive measures, such as ordering arrests,
interceptions of telecommunication, or house searches, just as national
prosecutors can. Yet – and unlike national prosecuting authorities – the EPPO
would be competent to apply these measures in all the territories of the
participating Member States, without the restriction of national borders. It
might therefore be expected that the ministers of justice, the European
Parliament, and the European Commission would hold extensive debates on the
precise conditions for searches, telephone interceptions, arrests, and
pre-trial detention in supranational investigations. Surprisingly, they have
not.

On the contrary, in their efforts to prevent a further transfer of
power to ‘Brussels’, most Member States oppose any further approximation of
criminal procedure. And those who do support the establishment of an EPPO hold
that citizens’ rights are already sufficiently protected, referring to the
fundamental rights acquis laid down
in treaties and the EU Charter. They also point out that the EPPO must respect
the additional procedural guarantees provided in the domestic legal order of
the Member State where it is conducting its operations.

From national to transnational criminal procedure

Such safeguards are designed for the administration of criminal justice
in a domestic system and will not always fit the new transnational setting of
the EPPO. The potential consequences of this systemic flaw in EPPO’s design are
highly problematic. Imagine that the EPPO conducts a house search without
proper judicial authorization in Amsterdam, and then that the case is
subsequently brought to trial before a Milanese criminal court. Should the
Italian judge apply the complicated Dutch case-law on unlawful house searches?
And should the EPPO be allowed to search someone’s personal computer online,
from a distance, in order to evade the stricter rules of the Member State on
whose territory the computer is located? After all, it is not only the mobility
of criminals that is increasing, but also of witnesses, information, and
evidence in the area of freedom, security and justice to which the EU aspires.
Nonetheless, the proposal remains silent on these issues, with such potential
consequence as forum shopping and a race to the bottom of the lowest level of
safeguards.

The envisaged framework for the EPPO leaves an important question
unanswered: Do discretionary margins for choosing the applicable national law
with respect to investigatory powers, procedural safeguards, judicial
supervision, admissibility of evidence, etcetera
permit arbitrary interference with the fundamental rights of citizens involved
in criminal proceedings?

Both the European Court of Human Rights and the European Court of
Justice have consistently stressed the importance of the rule of law, as a
vital mechanism defending against arbitrary interference with citizens’
fundamental rights. The law provides citizens with legal certainty as to the
scope of their rights and duties; it helps to effectuate their defence rights;
and it enables courts to prevent executive discretion from turning into
arbitrariness. Under the proposed EPPO set-up, the problem is not that national
laws are absent, unclear or ignored. The problem is rather that the EPPO is
given more than twenty divergent national legal system to work with. This
creates the risk that a legal avenue for a particular intrusive measure might
be very easy to obtain. In certain cases, the EPPO is allowed to choose the
most attractive rules from multiple codes of criminal procedure – and
continuously to change the rules during the game, without its adversaries
having any say on the matter, and without courts being able to exercise
control. This leaves citizens without an adequate indication of which set of
national rules will apply in a particular case.

As a community based on the rule of law, the European Union should
protect its citizens against arbitrary action by European law enforcement
authorities. In order to guarantee that the rule of law will be upheld in the
European Public Prosecutor’s Office, citizens must be offered legal
certaintyas to which law will be
applied. Moreover, the law must be adequately accessible to all citizens: they
must be permitted to know their rights and duties, and invoke them in court.